Friday, August 07, 2015

IPSC, Copyright Theory III

Copyright Theory III

Abraham Bell, Bar Ilan University

The Dual-Grant Theory of Fair Use

Granted rights are limited in order to avoid unnecessarily
exceeding the requirements for incentivizing. Fair use is a broad reservation
of privileges for the public during the term of protection.Maximizing incentives with broad rights, but
also broad privileges—alternative would be fewer rights or more limited times.

Proposed two-step test: (1) is this a presumptively fair
use? (2) would recognizing this category of use as fair for this work eliminate
incentives to create this work?Less fact
intensive inquiry.Parodies v. satires—cases
are almost entirely wrong.A work
satirized in order to create political commentary, such as Cat NOT in the Hat,
that’s a perfect fair use.Transformativeness isn’t the issue.

Factors one and three deal with presumptively fair use:
nature and purpose; can you accomplish your goal with the amount of the portion
used/a good faith test.Preserving
incentives: factors two and four.

Lunney: Preserving incentives or preserving creation?

A: We want to cut back on incentives.

Q: how general do you want the second inquiry to be?If Texaco does this, will it drive the
publishers out of business?Or if
everyone does what Texaco is doing?SCt
favors the latter approach and I think you must too.

A: we are asking this type of use, but for this work, not for all works.[But that work has already been
created.]This catgory of works?

Christopher Buccafusco, IIT Chicago-Kent College of Law/Benjamin
N. Cardozo School of Law

A Theory of Copyright Authorship

Relationship between a person we call an author and an
entity we call a work/writing.What is
the scope of Congress’s power? What aspects of works can qualify for copyright
protection?Related questions.

Statutory works of authorship are a smaller set than “writings
of authors” under the Constitution.What
do authors do?Express ideas?What’s the idea in a piece of classical music
or photo? What’s the idea in a taxonomy or computer program?This approach is a massive failure, see Mannion.Application of §102(b) has been incoherent; idea of unconstrained choice
has not been helpful.

Authorship entails the intentional production of mental
effects in an audience; a writing is any medium capable of producing mental
effects. Copyright can attach to any fixed object that expresses this.

Semantic intentions: what does the work mean?Is it a satire?Categorical intention: the thing the author
has written is a poem and not a laundry list—the kind of thing she has created.
We need not care about semantic intentions for categorical issue of
protectability.Did the author intend to
create some aspects of the thing to create mental effects in an audience?If yes, those aspects are “authorship” and
can be copyrighted if appropriate.

Also helps us understand what aspects of a given work are
protectable. Only certain aspects count.Everything else must be filtered out.If it doesn’t create mental effects in audience, it’s not authorship.
Find aspects of the work intended to create mental effects in the audience;
those constitute authorship, not manner or form choices choices made for
purposes of convenience, interoperability, etc. This obviates need to resort to
102(b). Photos: Which of photographer’s choices are minimally creative.Same with taxonomies: is there some aspect of
the manner or form in which these things were arranged that the author intended
us to experience something about
them? Software: also limits.

Dan Burk: you have to deal with operating systems, and
personal diaries locked in a drawer.

A: add on: if they were perceived.If MS-DOS was intended to produce some
effect, then ok.

RT: Your standard reminds me of Chicago: “I guess you could say we broke up because of artistic
differences. He saw himself as alive. And I saw him dead.” Or maybe Se7en. Lots of acts are intended to
create effects in an audience, like racially motivated killings.Seems to be a reframing of the speech/conduct
distinction in First Amendment law—there, it tends not to solve the problem it
is offered to solve.For example,
Duchamp’s toilet: fixed, and intended to create mental effects, but
copyrightable?

Then you get to computer games and other types of digital
media. Ted Friedman wrote an influential piece: no real characters/protagonists
in SimCity and Civilization—you end up identifying with cognitive maps.Whole new type of work.Has narrative but not in the way we used to
think about it. Cybernetic circuit: player, system, and content: something
emerges in storytelling from that interaction.

Reader-response theory: reinterpretation/reimagination.Hands-on: you’re creating new storylines,
characters, outcomes as you go along.Reader is now co-creator with developer of content but also with the
technical system in something like Donna Haraway’s cyborg.

Friedman had huge effect on analysis of new media:
hypertext, DVDs—once skip/fast forward is in viewer’s hands, DVD becomes
cybernetic circuit that’s not the director’s cut/what the director intended.

Can help us think about a number of cases: Duke Nukem in
3D/MicroStar v. Formgen: video game architecture—library of images; game
engine; map files that were instructions to game engine of when and where to
place items from the library.Developer
encouraged users to develop extra levels of the game—new MAP files.Someone copied a bunch and sold them on a
disc, and developer didn’t like that. MAP files don’t on their face have any
content that belongs to the game developer, and weren’t written by game
developer.Kozinski said they were
derivative works—which takes a lot of hoop-jumping. They’re somehow sequels to
the game—new stories about Duke Nukem. But that’s a weird characterization;
there’s no content there, just code that specifies where the content goes.
Potential narratives.Games don’t play
themselves—they only become stories in the context of a technical system and a
player generating an output.More
sensible way to think about it than Kozinski used.

ClearPlay—easier to think about with this approach.Useful work in narratology that helps us
think about digital works in ways we haven’t before.

A: rereading Walter Benjamin because of that.It’s a political decision.Authenticity has a particular connection to
the romantic author he’s not sure works here. May need a radically different
notion of authenticity—maybe we can’t say “This is Blizzard’s game,” or maybe
it goes by the wayside in some cases.

Mike Carroll: How important is narrative to the question: if
we treat reader as perfomer or performer as athlete?Dancers perform choreography; players carry
out sports play; Twitch asks what makes them different. Sport contest is a kind
of story, but doesn’t fit as neatly into your explanation of narrative.

A: What Friedman is saying is that there are other
nontraditional kinds of narrative, and the way we have baked in narrative into
copyright may be wrong; revisiting sports performances might be one consequence
of rethinking.

Feist set a very
minimal standard, but didn’t give you any way to calibrate creativity—a yardstick
without any inches on it.No notion of
the positive: what is creative?

Idea/expression: The higher you go with an idea, the more
alternatives there are. Some courts seem to view idea/expression as coextensive
with creativity, like the ADA v. Delta
Dental: if you can find alternatives for doing something, it’s
creative.Other courts play up authorial
choice between the alternatives—a fairly common approach. Other courts are
probabalistic: there are less probable and more probable choices and we favor
the less probable ones. But that’s a minor tweak.

Alito’s opinion in Southco
v. Cambridge: parts number taxonomy was uncopyrightable. Photos by contrast
have complex and indeterminate ideas.Should distinguish creativity from idea/expression.Author’s engagement w/cultural landscape
around them that creates creativity, not isolated imagination of a bunch of
alternatives.

Proust’s novel In
Search of Lost Time—there are no alternatives for his first sentence.“For the longest time I went to bed early.”He made a wildly creative choice (throws off
your sense of time), but having chosen to say this he had almost no choice in
how it would be done.But choice is not
the right methodology for choosing creativity. It’s not realistic as to how
creativity works: a creative work is not assessed as having chosen one of many
alternatives. Creativity = unpredictable.

Bergson: Nobel Prize for literature in 1920s.We think of things as being repeatable,
reversible in a lot of ways. We like to break things down into chunks, rather
than the whole movement or process.Cinematographic method.Faults
humans for reducing events to things and states.The possible only becomes possible when it
becomes real: a nub of the alternative approach to creativity.The choice idea presupposes a lot of
possibles that never come into being, but they don’t exist and maybe never
will.Think about creativity as movement,
processes—the work is never done.The
process that led to that particular artifact matters.

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I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.